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2021 Supreme(Guj) 774
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ASHOKKUMAR C. JOSHI, J.
HIRABHAI PUNJABHAI BHARAI - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CRIMINAL APPLICATION NO. 4842 of 2020
Decided On : 02-09-2021
For The Appellant : MR SANDIP M PATEL
For The Respondent: MS CM SHAH APP.
Point of Law: It is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time.
Headnote:
Code of Criminal Procedure 1973 - Section 482 and 451 - Constitution of India, 1950 - Articles 226 and 227 of - Prohibition Act - Section 98(2) and 99 - Gujarat Prohibition Act - Sections 65(E), 81, 98(2) and 116B - Release of vehicle - Order for custody and disposal of property pending trial in certain – Saving of inherent power of high court - Amended Act, - Petitioner is owner of Two wheeler It is case of petitioner that learned Court below has rejected release of Muddamal application only because of restriction under Section 98(2) of Prohibition Act but vehicle lying at Police Station for more time otherwise there will be physical damage to it therefore interference of Hon’ble Court is required and therefore Court may please to allow application in interest of justice.
Finding of the Court :
Court question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by concerned persons - Court has taken note of same but with respect it is nobody’s case that same vehicle is used in all earlier offences and therefore merely antecedents of few offences upon petitioner cannot deny interim possession of vehicle to petitioner and on basis of judgment of Hon’ble Supreme Court in case of State Court is inclined to exercise extraordinary powers under Articles 226 and 227 of Constitution - Court has assistance of orders passed by co ordinate Bench in case of State of Gujarat in Special Criminal Application order in wherein Muddamal vehicle was used in offences under Prohibition Act released by Court at many occasions.
Result: Application allowed
.
JUDGMENT :
1. The petitioner has filed this application seeking to invoke extra ordinary jurisdiction to this Court under Articles 226 and 227 of the Constitution of India, mainly supervisory jurisdiction so also inherent powers under Section 482 of the Code of Criminal Procedure to release the muddamal vehicle- Two wheeler Hero HF Delux DRK bearing RTO registration No. GJ-11-BL-9880 in connection with the FIR No.11203004200958 of 2020 registered with ‘C’ Division Police Station, District – Junagadh for the offence punishable under Sections 65(E), 81, 98(2) and 116B of the Gujarat Prohibition Act.
2. Heard learned advocate Mr. Sandip M Patel for the petitioner and learned APP Ms. CM Shah on behalf of the Respondent State of Gujarat through video conference.
Factual Matrix of the case:
3. It is the case of the petitioner is the owner of Two wheeler Hero HF Delux DRK bearing RTO registration No. GJ-11-BL- 9880. It is the case of the petitioner that the learned Court below has rejected release of muddamal application, only because of restriction under Section 98(2) of the Prohibition Act but vehicle lying at the Police Station for more time, otherwise there will be physical damage to it, therefore interference of this Hon’ble Court is required and therefore, this Court may please to allow this application in the interest of justice.
4. It is contended that as per the allegations in the FIR, on 05.06.2020, as per the secret information received by the complainant that one Sura Kodiyater had kept liquor at new house of Rajivnagar and on the base of said information, raid was carried out by police. It was found that foreign liquor worth Rs.86,400/- were found from one Piyago auto rikshaw and foreign liquor worth Rs.1,68,480/- from the house and three motor cycle which were parked at faliya for the purpose of delivery of the liquor. It is further contended that during raid the Investigating Officer had seized one Two wheeler Hero HF Delux DRK bearing RTO registration No. GJ-11-BL- 9880 and accordingly an FIR came to be registered.
5. It is also contended that petitioner has purchased the two wheeler Hero HF Delux DRK bearing RTO registration No. GJ-11-BL-9880, which is the earning means of the petitioner and present the said vehicle is lying in Police Station in abandon condition. It is also contended that after the amendment in the Prohibition Act as per the provisions contained in section 98(2) of the said Amended Act, the learned Magistrate and the learned Sessions Judge does not have jurisdiction to release the muddamal vehicle by exercising power under section 451 of the Cr.PC in case of muddamal vehivle which is alleged to be used in the prohibition offences in which the quantity of liquor is more than 10 liters. Under such circumstances, the present petitioner is not having any other alternative remedy, except filing of this petition before this Court, therefore, the present petition is filed and prayed for releasing the captioned muddamal vehicle.
6. Earlier also this Court has issued Rule on 28.09.2020, returnable on 09.10.2020. Learned advocate for the petitioner time and again vehemently submitted that the co – ordinate Bench passed the order in favour of the petitioner in identical cases. Further learned advocate for the petitioner has placed reliance upon the judgments of co-ordinate Bench (1) in case of Ritesh Bishmber Agrawal vs. State of Gujarat in Special Criminal Application No. 5533 of 2018 order dated 18.01.2019, (2) in case of Ganibhai Yusufbhai Jamroth vs. State of Gujarat in Special Criminal Application No. 2776 of 2020 order dated 07.07.2020, (3) in case of Ranjitbhai Ishvarbhai Chunara (Vaghela) vs. State of Gujarat in Special Criminal Application No. 7631 of 2019 order dated 12.06.2020, (4) in case of Zala Mahendrasinh Kirtisinh vs. State of Gujarat in Special Criminal Application No. 2717 of 2020 order dated 26.06.2020, (5) in case of Prajapati Rajendrakumar Rameshbhai Vs. State of Gujarat in Special Criminal Appl
